The Law Society of Upper Canada, Ontario’s governing legal body for lawyers, is set to debate and vote today on whether to accredit the proposed law school at B.C.’s Trinity Western University (TWU). For the life of me, I can’t understand why Canada needs another law school given the problems law graduates are already having finding jobs. I must have missed the memo saying there is a lawyer shortage in Canada. But let’s leave that aside.
The TWU Covenant and the Accreditation Controversy
TWU requires all students and faculty to sign a document that governs their personal
life known as the Community Covenant, that includes pledging (among other things) to ‘abstain from the following actions’:
“sexual intimacy that violates the sacredness of marriage between a man and a woman”
That obviously would exclude any non-hetereosexual applicant who does not believe in the ‘sacredness of marriage between a man and a woman’ or is in a same-sex marriage, which is legal in Canada.
So the TWU admissions process discriminates against applicants based on sexual orientation. However, our laws are also complicated when it comes to religions that discriminate, giving religious institutions much broader rights to discriminate than non-religious institutions. Whether the law should allow religion to be used as a defence to discrimination is a great policy question. There’s already a lawsuit before the B.C. Courts challenging the government’s decision to approve the law school, and more will likely follow.
The Hypothetical: Discrimination in Hiring Against a TWU Law School Graduate
Since this is a ‘law of work’ blog though, I’m interested in considering an angle into this story that hasn’t received much coverage to date. The provincial law societies are debating whether to recognize the TWU. If they don’t, then students who graduate from TWU would have great difficultly practicing law, since having a law degree from an accredited university is a requirement for being called to the bar. However, let’s assume that the law societies decide to accredit the law school. Johnny now enters the labour market with his TWU law school degree in hand.
Poor Johnny, though. Because of the notoriety of his law school, prospective employers will pay attention to the fact that he went to TWU, and this may provoke one of three reactions:
1. Since the recruiter abhors TWU’s discriminatory policies, and the beliefs upon which the school claims to operate, there may be a tendency to look less favourably at TWU’s graduates like Johnny. Maybe the recruiter’s own religious beliefs are at odds with TWU’s. There may also be a concern that Johnny’s presence may cause tension in the workplace, especially (though not exclusively) with the gay and lesbian lawyers, and that some clients might also object to Johnny working on their files. It might be safer to just steer clear of Johnny, and hire someone from any of the other fine non-religious law schools.
2. The recruiter supports the right of TWU to impose its Covenant on applicants, and maybe supports the religious beliefs of TWU. Maybe the recruiter is even an Evangelical Christian himself. In this scenario, there may be a tendency to look more favourably at TWU graduates, and at Johnny.
3. The recruiter may believe that the controversy is irrelevant, and that all that matters is Johnny’s grades and performance in the interview.
Now, employment law students, can you see how reactions 1 and 2 raise human rights problems? It’s a violation of human rights laws in Canada for an employer to give preference to or to avoid hiring an applicant because of that person’s religious beliefs or opinions.
If the employer associates TWU with the school’s religious beliefs, or assumes Johnny is Christian (or Evangelical Christian) because he went to TWU, then scenarios 1 and 2 create the spectre of religious discrimination in hiring. On the other hand, if the employer doesn’t hire TWU graduates because it assumes, as a new law school, the quality of education is inferior, or because other applicants were superior, then that would not be religious discrimination. You can bet that is what the employer would argue if Johnny brought a complaint. It would be up to human rights tribunal to sort out whether religion played any role in the decision.
Consider Ontario’s Human Rights Code. Section 5 makes it illegal for a law firm to discriminate (in both the positive or negative sense) in a hiring decision on the basis of creed (which includes religion). If the fact that Johnny attended a religious institution that the employer does or does not agree with, that Johnny is a Christian, or that TWU is a religious institution that excludes applicants based on sexual orientation plays a role in the employer’s hiring decision, then Section 5 would be engaged.
Would Discrimination Against or in Favour of TWU Graduates Be Lawful?
However, that is not the end of the inquiry. The Code also permits some types of discrimination by carving out exceptions to the general prohibition against discrimination in Section 5. So we need to look if any of them apply to the law firm that excludes Johnny or gives him preference because
One exception appears in Section 24(1)(a). That section says (paraphrasing) that it is not discriminatory for a “religious institution” that is primarily engaged in serving one religion can give preference in hiring to people of that religion, if the job reasonably requires people to be of that religion. It’s hard to see how that section could apply to a law firm that discriminates against or in favour of TWU graduates.
How about Section 14? That section allows an employer to give preference in hiring to “disadvantaged persons or groups” as part of a special program. Could the recruiting firm in scenario 2 argue that “Evangelical Christians” are a disadvantaged group? Again, hard to see how, though I note that the Dean of TWU has argued that Evangelical Christians are a minority in Canada. But not every minority is a “disadvantaged group”.
What about Section 11 (Constructive Discrimination)? This is the section that deals with requirements that are neutral on their face, but have an adverse impact on some applicants because of their religion. For example, it applies when an employer requires all employees to work on a certain day, but some employees have religious beliefs that prohibit them from working that day. I’m not sure this section arises in the above scenarios, since it looks more like we are dealing with direct discrimination on the basis of religion. Anyone think that this would be a Section 11 case?
Conclusion and Issues for Discussion
An employer that refused to hire or that gave preference to TWU graduates for reasons related to religion would likely run afoul of the Ontario Human Rights Code. Nor would any of the exemptions seem to apply that would justify the discrimination. It looks like a law firm that weeded out TWU university law school graduates could run into legal problems.
1. Is your interpretation of the legal rules different?
2. Imagine Johnny doesn’t get a law job at a Toronto law firm and files a human right complaint alleging the decision was tainted by religious discrimination. Do you think Johnny would have a hard time proving discrimination?
3. If Gayle, a graduate of Osgoode Hall Law School, got the job over Johnny, and Johnny wins his complaint, what should be the appropriate remedy? Should the Tribunal order the employer to hire Johnny? What if hiring Johnny would require firing Gayle?
4. Assume instead that Scenario 2 applied, and Johnny got the job over Gayle because of his religion and affiliation with TWU. Would Gayle now have a human rights complaint against the employer? If she wins, what remedy should she be awarded?
5. Finally, do you think it is fair that a law should prevent an employer who disagrees with TWU’s discriminatory policies from discriminating itself against TWU graduates? Should an employer be legally required to hire an applicant whose religious beliefs he/she finds abhorrent?